Employer not required to make Family Day a holiday under collective agreement: Arbitrator

Agreement had provision to add Heritage Day in February if it was proclaimed

An arbitrator has ruled an Ontario company did not violate its collective agreement when it substituted the new Family Day holiday for one of its floating holidays.

Agropur, Division Natrel, a Longueil, Que.-based dairy co-operative, sent a memo to employees of an Ontario plant on Jan. 23, 2007, saying the collective agreement allowed for nine paid holidays and four paid “float days.” Since the total of 13 paid days off each year was more than the minimum of nine provided for in the Ontario Employment Standards Act, Agropur said employees would be expected to work on Feb. 18, 2008, which was the date of the new Family Day holiday.

The union filed a grievance, saying the collective agreement provided for the possibility of a new February holiday to be included. A provision in the agreement, first included when the Ontario government considered a February holiday in 1978, stated if the government declared “Heritage Day” as a statutory holiday, it would be added to the list of holidays defined in the agreement. The union considered “Heritage Day” to refer to any new holiday in mid-winter and that was the intention of the clause. The union also said the floating days weren’t guaranteed holidays as they could be paid out instead of being taken and they were also considered separate from the list of statutory holidays in the agreement. Therefore, they shouldn’t be considered a better benefit than the statutory holidays provided for by law.

Agropur disagreed, saying Heritage Day and Family Day were not the same. It said the collective agreement did not refer to Family Day or a specific date in February and its plain meaning should be given: no Heritage Day, no February holiday. Since Family Day was not proclaimed a statutory holiday, it was separate from the list of holidays in the agreement.

The arbitrator sided with Agropur, finding no reason to assume the collective agreement supported the inclusion of Family Day as one of the holidays and the provision for a Heritage Day should be given its plain meaning.

“It seems they meant to say Heritage Day, and that holiday has not been proclaimed,” the arbitrator said. “There is nothing in the evidence that would support a departure from the bare meaning of the words chosen by the parties to express their intention.”

The arbitrator also found the four floating days provided for in the collective agreement could be considered a better benefit than the statutory minimum. Even if the floaters weren’t taken and were paid out to an employee, it still represented a better benefit. “In addition to the nine holidays, employees will either receive four more days off or will receive four days pay in lieu,” the arbitrator said. “In either event, that is a better benefit than the employment standard, which only provides nine holidays.” See Agropur, Division Natrel v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647, 2008 CarswellOnt 5145 (Ont. Arb. Bd.).

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